The facts relevant to this motion are largely undisputed. During his tenure as Chief of Police, Marden was paid no overtime compensation, although he often worked more than forty hours per week.

In April 1996, disciplinary charges were filed against Marden for, among other things, refusing to comply with requests of the Town Supervisor for information about an investigation related to a vehicular traffic stop in February 1996. The disciplinary charges informed Marden that, "If you are found guilty of any of the above charges and specifications the penalty or punishment imposed include, but are not limited to dismissal, a suspension without pay, or reprimand." During the pendency of the disciplinary proceeding, Marden was suspended with pay.

The disciplinary hearing, held in July 1996, was conducted before the Town Board and pursuant to the Westchester County Police Act ("WCPA"), which applies to Bedford, New York. The WCPA provides in part that:

Any member of [the police department] found guilty...of neglect or dereliction in the performance of official duty, or violation of rules or regulations or disobedience, or incompetency to perform official duty, or an act of delinquency seriously affecting his general character or fitness for office, may be punished...by reprimand, forfeiture and the withholding of salary or compensation...by suspension from duty...and the withholding of salary or compensation during such suspension, or by dismissal from the department.

A motion for summary judgment should only be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Hayes v. New York City Dep't. of Corrections, 84 F.3d 614, 619 (2d Cir. 1996); Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The court's responsibility is to perform "the threshold inquiry of determining whether there is the need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." McNeil v. Aguilos, 831 F. Supp. 1079, 1082 (S.D.N.Y. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)); Hayes, 84 F.3d 614 at 619. In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities in the light most favorable to, and draw all reasonable inferences in favor of, the party opposing the motion. Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 382 (2d Cir. 1996); In re State Police Litigation, 88 F.3d 111, 123 (2d Cir. 1996). A finding of disputed material facts that could reasonably be resolved in favor of either party precludes summary judgement. Wernick, 91 F.3d at 382 (quoting Anderson v. Liberty Lobby, 477 U.S. at 250). In this case, the facts relevant to whether Marden, in his role as Chief of Police, was exempt from the overtime provisions of the FLSA are substantially undisputed. Thus, the determination can readily be made as a matter of law.

Section 213(a)(1) of the FLSA exempts "bona fide executive, administrative, or professional" employees from the Act's overtime pay provisions. 29 U.S.C. § 213(a)(1). One requirement for exempt status under § 213(a)(1) is that an employee earn a specified minimum amount on a "salary basis."
*fn3"
29 C.F.R. § 541 (1996). An employee is paid on a salary basis if he "regularly receives each pay period...a predetermined amount...which amount is not subject to reduction because of variations in the quality or quantity of the work performed." 29 C.F.R. § 541.118(a) (1996).

The application of the salary basis standard was recently clarified by the Supreme Court in Auer v. Robbins, 519 U.S. 452, 137 L. Ed. 2d 79, 117 S. Ct. 905 (1997), where the Court upheld the Secretary of Labor's formulation of the salary basis test. More recently, the Second Circuit, in light of the Supreme Court's decision in Auer, applied the salary basis test in the case of Ahern v. The County of Nassau. 118 F.3d 118 (2d Cir. 1997).

Under the Secretary of Labor's formulation of the salary basis test, employees subject, as a practical matter, to reductions in pay through disciplinary suspensions, without pay, are not "exempt" under § 213(a)(1).
*fn4"
Auer, 117 S. Ct. at 911.

The other formulation of the salary basis test requires that there be a policy that communicates to plaintiff that there is a "significant likelihood" of pay docking. Auer, 117 S. Ct. at 911. The fact that pay docking may have been one of the penalties contemplated during Marden's disciplinary proceeding does not establish the existence of any such policy. Furthermore, the Board's statement, in its detailing of the charges, that suspension without pay was a possible penalty, and the Town Supervisor's memorandum to the same effect both essentially recited the language of the WCPA. In sum, there was neither an actual practice of pay docking for officers in Marden's grade, nor a particularized policy that effectively communicated a significant likelihood of pay docking for specified disciplinary infractions.

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